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Copyright in data file formats from SAS to Technomed

A fundamental tenet of most copyright laws is that copyright protects the particular expression of an idea rather than the underlying idea itself. The rationale is simple: copyright has no business in awarding monopolies which would have the effect of shoring up the common stock of ideas and potentially stifling creativity and competition. Of course, the challenge faced by legal advisers and the courts is to identify the point at which a mere concept or idea morphs into a protectable expression. For example, at what point does the format of a television show or the plot of a book become protectable?

This is a question which has also been considered in the context of computer programs. Some aspects of computer programs are easier to classify than others. For example, within the EU copyright does not extend to protect the functionality of a program or its operational interfaces, reflecting a policy choice to foster interoperability between programs. Similarly, the programming language in which a program is written is not protected. These aspects are in the spectrum of ‘ideas’. At the other end of the spectrum are aspects which are expressly identified in the relevant legislation (the Computer Programs Directive[1]) as being protected, namely the source code, object code and preparatory design materials for a program. Then there is everything inbetween, including data file formats. In very simple terms, a data file format is the layout and organisation of data within a file. The format enables a computer program to recognise and access the data contained within the file. A file format is typically indicated by a suffix in the filename. For example, the data file format for a webpage would be .htm or .html, for a Word document .doc, for an Adobe Acrobat file .pdf and so on.

In SAS Institute Inc. v World Programming Ltd the EU Court of Justice (“CJEU”) concluded that the data file formats used in SAS’s SAS System (a data processing and statistical analysis system that enables its end users to write and run bespoke application programs using the SAS programming language, thereby adapting the system to work with their own data) were aspects which enabled those users to exploit certain functions of the program. As such, at least under the Computer Programs Directive, it appeared that data file formats – or at least those used in the SAS System - were not protected by copyright. However, the CJEU also acknowledged the possibility that data file formats might nevertheless be protected by copyright under the InfoSoc Directive[2], provided that they constituted the author’s “own intellectual creation”.

When the CJEU referred the SAS case back to the UK High Court, Mr Justice Arnold also noted this possibility, pointing out that the ‘author’s own intellectual creation’ required “something on which the author had stamped his personal touch through the creative choices he has made”. However, Mr Justice Arnold was mindful that SAS had not actually pleaded a claim under the InfoSoc Directive and so he was not required to decide the point and it remained open to argument. He did note that parts of a data file format differentiated only by their technical function must be disregarded and that there was uncertainty in this case as to whether the data file formats could amount to a protectable “work” under the InfoSoc Directive.

More recently, in Technomed Ltd & Anor v Bluecrest Health Screening Ltd & Anor, the High Court had an opportunity to revisit whether a data file format might be protected by copyright under the InfoSoc Directive. The claimants (“Technomed”) claimed that the defendants had infringed database right and copyright in their electrocardiogram analysis and reporting system known as ECG Cloud. Among the claims advanced by Technomed was a claim for copyright in a standardised XML format, used in providing patients with the results of their electrocardiogram screening via the ECG Cloud, as a literary work. David Stone, sitting as a Deputy High Court Judge, noted that counsel for the defendants had accepted in closing that the XML Format could be a literary work, provided that it constituted the author’s “own intellectual creation”. Accordingly, he was not required to address the potentially problematic requirement of fixation of the format – as referred to by Mr Justice Arnold in SAS - and accepted counsel for the claimants’ submission that the XML Format exhibited the personal stamp of its author (such as names chosen by the designer and syntax element dictated by the XML standard which meant that the XML Format contained content and not just structure) and was therefore entitled to copyright protection. So Technomed provides an answer where SAS could not: a data file format can be protected by copyright under the InfoSoc Directive provided that the format exhibits the personal stamp of its author.

Although one of many findings in Technomed, this has commanded very little attention thus far. It is nevertheless a significant development. A data file format is, broadly speaking, a type of interface (like a communication protocol or an API) and the Computer Programs Directive does not extend copyright protection to ideas and principles which underlie interfaces of a computer program, at least to the extent that those interfaces define the rules/methodology for interoperability. This, of course, reflects the policy choice within the Computer Programs Directive in favour of interoperability. Viewed in this context, the copyright protection of data file formats is something of a departure from this policy. It is, however, not an unprincipled one or necessarily an unwelcome one (at least for authors of formats); what is being protected in Technomed is the specific implementation of an ‘interface’ which was found to contain protectable expression and had therefore had moved beyond the realm of being a mere concept/idea.

Following Technomed it is evident that a data file format can indeed be protected by copyright (at least in the UK). As is always the case when addressing whether copyright subsists in a particular work, whether it actually does will need to be addressed on a case-by-case basis.

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